Newfoundland and Labrador’s Labour Relations Board was justified in refusing to disclose certain internal communications and draft materials related to two of its decisions, citing a provision that shields quasi-judicial decision-making records from public release.
The finding from Information and Privacy Commissioner Kerry Hatfield concluded that the Board properly applied the Access to Information and Protection of Privacy Act, 2015 to withhold records and had “generally met its duty to assist” an applicant who sought information about the Board’s process for posting decisions online.
Public posting of two rulings
The Complainant, identified only by that title in the ruling, had requested “All records pertaining to the posting the Board’s decisions in [two named Labour Relations Board decisions] in the public domain, including on the Canlll website.” The timeframe covered about six months and aimed to examine how and why the Board’s decisions were made publicly available on its own website and through the Canadian Legal Information Institute (CanLII).
In its initial response, the Board provided the Complainant with two emails it had sent to CanLII, attaching the decisions for publication. Beyond that, however, the Board refused to disclose additional material. It invoked section 5(1)(b) of the Access to Information and Protection of Privacy Act, 2015, which states the legislation does not apply to “a note, communication or draft decision of a person acting in a judicial or quasi-judicial capacity.”
According to the Board, its members, as an independent tribunal, fall within that category.
The Labour Relations Board operates under the Labour Relations Act, adjudicating disputes and issuing orders and written reasons. While it makes final rulings public, the internal communications that lead up to those rulings are, in the Board’s view, shielded by the law. The Board told the Commissioner’s Office that the withheld records included notes, communications, or draft decisions prepared by persons acting in a quasi-judicial role. It maintained that this protection continues to apply “even after a final decision has been rendered.”
Complainant challenged interpretation
The Complainant challenged this interpretation, arguing that once the Board’s decision is finalized, it no longer has the authority to revisit it and therefore cannot rely on section 5(1)(b) to withhold related records. The Complainant suggested that the Board is “functus officio” once a decision is issued and must disclose its underlying documents.
However, the Board noted that one of the parties had requested reconsideration of the initial decision. This reconsideration application, still active during the relevant period, related to the issue of disclosing a party’s name publicly. As a result, the Board stated it continued to hold quasi-judicial records linked to the decisions, making them exempt from disclosure.
The Commissioner’s decision supports the Board’s position, confirming that its members act in a quasi-judicial capacity and that section 5(1)(b) applies to the records at issue. The Commissioner found: “Based on the mandate and authority of the Board, we therefore conclude that Board members are persons acting in a quasi-judicial capacity.” This conclusion underpinned the decision that the notes, communications, and draft materials related to the contested decisions remained outside the scope of the Act. The Commissioner added, “we are satisfied that section 5(1)(b) applies to the other records.”
Obligation to provide assistance
One element of the Complainant’s dissatisfaction focused on the Board’s obligation to provide assistance, as set out in section 13 of the Act. Section 13(1) requires public bodies to make “every reasonable effort to assist an applicant in making a request and to respond without delay to an applicant in an open, accurate and complete manner.” The Complainant contended that the Board had failed to offer satisfactory clarifications after the initial response. The Complainant had asked follow-up questions to gain a better understanding of the volume of withheld records and the general practices behind posting decisions online. According to the Complainant, the Board’s short and, at times, unclear replies constituted a “refusal to clarify the matter.”
The Commissioner examined whether the Board met its “duty to assist” requirement. The decision acknowledges that the Board attempted to answer the Complainant’s inquiries, though the exchange was brief and sometimes marked by misunderstandings. The Commissioner concluded that the Board’s efforts were sufficient: “Having reviewed the correspondence between the Board and the Complainant, we are satisfied that the Board has met its duty to assist.” While the Complainant may have been frustrated, the Commissioner found no evidence that the Complainant was prejudiced by any miscommunication.
Reasonable search for records
Another area of scrutiny was whether the Board conducted a reasonable search for responsive records. Under section 13, a public body must take steps to identify all materials relevant to the request. The Board explained that it searched its employees’ and board members’ records using appropriate keywords. It found only two non-exempt emails—those provided to the Complainant. These emails had been sent to CanLII with copies of the decisions for public posting. The Board also noted that it routinely posts decisions on its own website, a process involving the Office of the Chief Information Officer (OCIO). However, the emails to OCIO, if any, had been deleted as transitory records before the Complainant’s request was filed, leaving them unavailable.
The Commissioner accepted the Board’s explanation. The standard is reasonableness, not perfection. The Act does not require public bodies to produce records that no longer exist. The Commissioner did not fault the Board for failing to provide the deleted emails, noting that such housekeeping practices occur regularly in various organizations.
Throughout the decision, the Commissioner emphasized the specific legal framework in play. Section 5(1)(b) places certain materials outside the reach of the access legislation, particularly those tied to judicial or quasi-judicial decision-making. The Board’s reliance on this exemption was a key point. Given that the Board members issue rulings under the Labour Relations Act and that their decisions are not subject to judicial review—parties must return to the Board itself if they seek reconsideration—the Commissioner agreed that these members act in a quasi-judicial role, ensuring their internal deliberative materials remain confidential.
With respect to the Complainant’s position, the ruling does not suggest any improper motive by the Board, nor does it identify any procedural failures beyond minor communication gaps. The Commissioner found no indication that the Board actively withheld information to which the Complainant might otherwise be entitled. Instead, the decision underscores the complexity of drawing a line between what records are releasable and what are considered protected internal documents within bodies performing adjudicative functions.
In its recommendation, the Commissioner endorsed the Board’s decision, stating that the Board should “maintain its position on this matter.” Under the Act, the Board’s head is required to issue written notice of any decision made in response to the Commissioner’s recommendation to all relevant parties.
For more information, see Report A-2024-059.
